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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID ORTIZ-LOPEZ, : No. 797 MDA 2015
:
Appellant :
Appeal from the PCRA Order, May 4, 2015,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0001284-2011
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 01, 2015
David Ortiz-Lopez appeals pro se from the order filed in the Court of
Common Pleas of Berks County which dismissed, without a hearing, his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546.
On August 3, 2010, appellant sold two packets of cocaine to an
undercover police officer for $20. On August 5, 2010, appellant again sold
two packets of cocaine to an undercover police officer for $20. Both of these
transactions occurred within 1,000 feet of the 10th & Penn Elementary School
in Reading, Pennsylvania.
On April 8, 2011, appellant was charged with various violations of the
Controlled Substance, Drug, Device and Cosmetic Act, including: two counts
each of delivery of a controlled substance -- cocaine; possession with the
* Former Justice specially assigned to the Superior Court.
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intent to distribute a controlled substance -- cocaine; and possession of a
controlled substance -- cocaine.1 On April 27, 2011, the Commonwealth
filed its notice requesting a two-year mandatory minimum sentence
pursuant to 18 Pa.C.S.A. § 6317 because the offense occurred in a drug free
school zone. (Docket #8).2
On November 29, 2011, appellant entered a guilty plea to the two
counts of delivery of a controlled substance -- cocaine, and he was
sentenced to 3 to 7 years of incarceration. No post-sentence motions or
direct appeal were filed.
On January 23, 2015, appellant filed a PCRA petition challenging the
validity of his sentence nunc pro tunc. On March 9, 2015, appointed
1
35 P.S. §§ 780-113(a)(30) and (16), respectively.
2
18 Pa.C.S.A. § 6317(a) provides:
General rule.--A person 18 years of age or older
who is convicted in any court of this Commonwealth
of a violation of section 13(a)(14) or (30) of . . . the
Controlled Substance, Drug, Device and Cosmetic
Act, shall, if the delivery or possession with intent to
deliver of the controlled substance occurred within
1,000 feet of the real property on which is located a
public, private or parochial school or a college or
university or within 250 feet of the real property on
which is located a recreation center or playground or
on a school bus, be sentenced to a minimum
sentence of at least two years of total confinement
...
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counsel, J. Allen Daringer, Esq., filed a Turner/Finley3 “No Merit” letter and
a petition to withdraw. (Docket #22). On March 14, 2015, the PCRA court
granted Attorney Daringer’s request; and three days later, the PCRA court
issued its Pa.R.Crim.P. 907(1) notice of intent to dismiss the petition without
a hearing. (Docket #25). Although appellant filed a response to this notice,
the PCRA court determined that it lacked jurisdiction and dismissed the
petition on April 20, 2015.
On appeal, appellant argues4 that his two-year mandatory minimum
sentence under § 6317(a) was unconstitutional under Alleyne v. United
States, 133 S.Ct. 2151 (2013). He requests that we remand his case for
resentencing. Before we may address the merits of appellant’s arguments,
we must first consider the timeliness of appellant’s PCRA petition because it
implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted).
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). The Pennsylvania Supreme Court has held
that the PCRA’s time restriction is constitutionally sound. Commonwealth
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
Appellant’s brief does not contain a statement of questions involved.
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v. Cruz, 852 A.2d 287 (Pa. 2004). In addition, our supreme court has
instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118 (Pa.Super. 2014) (courts do
not have jurisdiction over an untimely PCRA); Commonwealth v.
Wharton, 886 A.2d 1120 (Pa. 2005).
In this case, appellant’s PCRA petition is facially untimely. Appellant
entered his guilty plea and was sentenced on November 29, 2011. Since no
appeal was filed, appellant’s sentence became final on December 29, 2011,
which was 30 days from the judgment of sentence. Appellant had one year
from this date, or until December 29, 2012, to file a PCRA petition.
Appellant filed his PCRA petition on January 23, 2015, which is more than
two years after the deadline imposed by the PCRA.
There are three narrow exceptions to the PCRA’s timeliness
requirements which are set forth in 42 Pa.C.S.A. § 9545:
(b) Time for filing petition--
(1) Any petition under this subchapter,
including a second or subsequent
petition, shall be filed within one year of
the date the judgment becomes final,
unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim
previously was the result of
interference by government
officials with the presentation
of the claim in violation of
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the Constitution or laws of
this Commonwealth or the
Constitution or laws of the
United States;
(ii) the facts upon which the
claim is predicated were
unknown to the petitioner
and could not have been
ascertained by the exercise
of due diligence; or
(iii) the right asserted is a
constitutional right that was
recognized by the Supreme
Court of the United States or
the Supreme Court of
Pennsylvania after the time
period provided in this
section and has been held by
that court to apply
retroactively.
(2) Any petition invoking an exception
provided in paragraph (1) shall be filed
within 60 days of the date the claim
could have been presented.
The defendant has the burden of pleading and proving the applicability
of any exception. 42 Pa.C.S.A. § 9545(b)(1). “If the petition is determined
to be untimely, and no exception has been pled and proven, the petition
must be dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition.” Commonwealth
v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).
Appellant does not appear to argue that he has met any of the
timeliness exceptions at 42 Pa.C.S.A. § 9545(b)(1). Instead, he argues that
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18 Pa.C.S.A. § 6317(a) is void ab initio, and that his sentence was,
therefore, illegal regardless of when he asked the PCRA court for relief. He
claims that this court conducted an independent analysis of mandatory
sentencing statutes in Commonwealth v. Mundy, 78 A.3d 661 (Pa.Super.
2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)
(en banc), and found them to be “null and void.” Therefore, a sentence
that is void ab initio can be addressed at any time, in any form, and is
non-waivable. He argues that because is sentence was void ab initio his
PCRA petition was timely filed. We disagree.
In Mundy, we held that a challenge to the legality of a sentence may
be raised as a matter of right, is non-waivable, and may be entertained
so long as the reviewing court has jurisdiction. See also Commonwealth
v. Cardwell, 105 A.3d 748 (Pa.Super. 2014); Commonwealth v. Fennell,
105 A.3d 13 (Pa.Super. 2014) (a challenge to the legality of a sentence may
be entertained as long as the reviewing court has jurisdiction). In
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999), our supreme
court held: “[a]lthough legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one
of the [jurisdictional] exceptions thereto.” See also Commonwealth v.
Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (“although illegal sentencing
issues cannot be waived, they still must be presented in a timely PCRA
petition.”).
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As appellant’s PCRA petition is clearly untimely and appellant has
failed to plead and prove the applicability of any exception to the PCRA’s
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of appellant’s issues and did not err in dismissing appellant’s
petition without an evidentiary hearing.5
Order affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/1/2015
5
Even if appellant had invoked the newly recognized constitutional right
exception, his PCRA petition was untimely. This exception applies when a
new constitutional right is recognized which has been found to apply
retroactively. We have recently held that Alleyne does not apply
retroactively to cases on collateral review. Commonwealth v. Riggle, 119
A.3d 1058 (Pa.Super. 2015); accord Commonwealth v. Miller, 102 A.3d
988, 995 (Pa.Super. 2014) (Alleyne did not trigger the newly-retroactive-
constitutional-right exception to the PCRA’s time bar); United States v.
Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (“[W]e now hold that
Alleyne cannot be applied retroactively to cases on collateral review.”).
Alleyne is retroactive only to cases that were still on direct review when it
was decided on June 23, 2013. Here, appellant’s case was at the collateral
stage when Alleyne was decided on June 23, 2013. Because appellant's
case was no longer on direct review when Alleyne was decided, the
timeliness exception at 42 Pa.C.S.A. § 9545 (b)(1)(iii) would not apply.
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Com. v. Ortiz-Lopez, D.
Combined Opinion